Collaborative Divorce

Collaborative Divorce

Metro Detroit Collaborative Divorce Attorney

Imagine yourself designing a process to get people through a divorce. Now focus your design on a process with the children at the forefront of your consideration.

In designing such a process:

  • Would the foundation of the process you design be modeled after an 18th Century process with the expectation of dealing with 21st Century issues?
  • Would the main focus of your process be the divorce itself rather than life after divorce?
  • Would the process address the interest and values of the individuals going through divorce?
  • Would there be no place in your process design to effectively manage the inevitable emotional and psychological impact and fallout of divorce?
  • Would the process you design purposefully place the parents of children in the position of adversarial enemies?
  • Would the process you design be one where the divorcing spouses hire advocates who are primarily driven by financial gain and thus have an interest in fueling the inevitable emotional instability of the couple?
  • Would the process you design be one where the children of divorce have no voice, but were instead placed in the tug-of-war between their parents?
  • Would the process you design be one where one or both parties have no clear information about or any control over the final distribution of their income and property estate?
  • Would the process you design discourage the parents from communicating together on their own such that they could not work out issues about their future, their assets, their income and their children?

We hope your answers to the above questions are a resounding NO! If your answers to the above questions are YES, then you do not have to design such a process because it already exists – It is the traditional way people now get divorced in Michigan.

Our traditional legal system, based on "naïve realism" is comprised of the assumption that rational thought is the main vessel to obtain the truth and to navigate external reality. It is based entirely on reasoning and rationality with no place for human emotion, i.e., "if others obtained the same information I have, they would agree with me because my beliefs are based on a rational interpretation of what is real." Thus, human emotion is highly discouraged and completely ignored in the courtroom.

Conversely however, recent neuroscience research on humans has generated discoveries regarding the operation of the human brain depicting a brain when it perceives a crises, operates primarily on emotion and NOT at all on rationality. Neuroscience tells us that we have a brain which has not substantially changed for 20,000 years.

Our view of reality is through sensory perception which is inherently imperfect with a tendency toward error. This is especially true in times of stress and threats. What we gather from our senses is immensely less then what we actually fail to gather. Our perceptions are then "edited" by a review of past experiences already stored which are relevant to the immediate experience or crisis.

When a current painful experience such as divorce fits into a previously painful experience with relationships, our memories are reactivated and every other painful relationship experience is recalled such that our bodies react with involuntary physiological responses such as increases in blood pressure and of heartbeat, floods of hormones into the bloodstream, like cortisol which responds to stress but is unhealthy at elevated levels, not to mention a possible 30 point decrease in IQ. Under this emotionally stressful situation, we do not engage the "thinking part" of our brain because in crisis situations, we are hardwired for "fight," "flight," or "play dead" responses whenever we feel threatened.

Yet, with our traditional method of resolving the conflict of divorce, clients in the midst of real human trauma are expected to make complicated rational decisions with long term consequences about their children, finances, and assets. Many clients going through divorce experience sustained stress, deep wounds, rejection, fear, distrust and a myriad of other attendant emotional turmoil. Most have never stepped foot in a cold, impersonal and intimidating courtroom and have no idea what they are in for!

Traditional conflict resolution in the court system focuses on a "bundle of individual rights," positional argumentation, rule-based solutions and third party decision makers. It is definitely NOT client-centered or interest based conflict resolution and it almost never seeks to find suitable solutions generated by the clients' interests and values. The clients' divorce is centered around legal abstract principles having NO emotional component and completely devoid of the clients' actual divorce-related experience. Divorce issues are labeled and quantified as "issues to be decided," such as alimony, child custody, child support, and property disposition.

In contrast, Collaborative Practice involves working with the "human" conflict rather than "legal" conflict. It is specifically interest-based and centered around values generated by each client. The Collaborative Process uses an interdisciplinary team to provide clients with the benefit of having professionals who are explicitly trained to deal with the specific disputes arising in almost every divorce.

Experience with our health system teaches us not to trust a dentist with a heart transplant. Nor would we have a plumber tackle the finished carpentry work when building a home. Why should that be different when an entire family is subjected to divorce?

Spouses get only one chance to get their divorce right. This is a particularly critical time in their lives and extremely crucial for divorcing couples with children. The process of divorce will set in motion the degree of the future success for the restructured family unit. A hostile divorce can result in deficient co-parenting, depriving children of the natural affection they have for both parents and need from both parents. An antagonistic divorce could set in motion the experience of re-litigation for future conflict resolution. The parents are taught to seek resolution from third party sources which have no intimate knowledge of each of them, their children or their circumstances.

Furthermore:

  • How can a lawyer handle a divorcing client's emotional state?
  • How can a lawyer adequately explain to the client detailed financial consequences with detailed tax implications of the disposition of family income, assets and debts?
  • How can a lawyer bring the children's voice and a barometer of their adjustment to their parents' conflict into the divorce?

Lawyers are simply not trained to thoroughly and properly address these common divorce issues. If they were able to do so single-handedly, the client's legal bill would be astronomical. Yet, these are common client needs, interests and values that go completely unaddressed in almost every single adversarial traditional divorce case.

The question for client is not whether they choose this process because most people, when provided with such information, are excited that such a process exists.

Instead, the question for the Collaborative divorce attorney is whether or not the client is appropriate for a Collaborative Divorce process. The client must be willing to make a commitment to avoid traditional litigation, commit to positively co-parent, accept responsibility for their own participation in the marriage and divorce, commit to self-determination, cooperate respectively, listen to others, share all relevant information and take reasonable positions. Divorces with substance abuse, mental illness and domestic violence are typically not suitable for the Collaborative Divorce Process. Divorces with partners who are unable to engage easily in the discussions leading to solutions or partners who cannot follow through are also unlikely candidates for the collaborative process.

The Collaborative Process is NOT an easier process because it is easier to go to war with the attorney warrior's protection of the client at the frontline in a traditional courtroom battle. The client has the least amount of control over what is happening in this scenario and is not truly an active participant in the information needed and used to make decisions for the result. The client has the least amount of control over the outcome.

What is the Collaborative Process?

First of all, attorneys, mental health professionals and financial professionals take specialized training to learn how to assist couples through divorce with this process. The idea is a team approach in an effort to assist people with the emotional and financial issues of divorce with each party having the representation of a trained attorney, a trained mental health professional as a divorce coach, a trained child specialist when children are involved and a trained financial specialist all committed to the process and guiding the couple throughout.

Once a couple decides to with a Collaborative Divorce, each collaborative attorney meticulously screens and provides their respective client with comprehensive information regarding the process. At that time, a 4-way meeting is scheduled. At this meeting, the parties, and attorneys thoroughly review an enforceable contract to resolve all of the issues necessary for finalization of the divorce without going to court. The other professional members of the team also sign this contract.

The contract states that if the process breaks down, the collaborative professionals must all withdraw from the matter and cannot represent or work their clients in court or in any future proceedings and the parties must seek new attorneys to proceed with another process.

This is the most important feature of the collaborative process, because it provides both the parties and the professional team with financial incentive to stick with the process and come to resolution. The mindset from the beginning of the process and throughout is NOT winner take all, instead it is a process of cooperation, dignity, respect and creative solutions. The contract requires full disclosure of all information, a financial status quo, no removal of children, and agreement not to transfer or dissipate assets or incur additional unnecessary debt.

The Process takes a team approach in a transparent fashion with the ultimate goal of creating resolutions which match-up with each client's interests and values. Members of the professional team model effective communication, active listening skills, interest-based negotiations, reframing of issues and creative problem-solving techniques. The parties agree to deal in good-faith, with respect, integrity, and a determination to come to resolution as a group team.

Once again, this is not an "easy" process, because it requires commitment and difficult work for all team members involved. The process deals with difficult emotional issues which would simply be ignored in the traditional divorce approach. Parties learn to deal with the emotional issues in order to more fully participate in meetings with their attorneys, their coaches, the financial specialist and the child specialist. The agreement not to litigate and the professional team providing a "safety net" or "container" around the couple/family to help them get through the difficult issues of a divorce with all members moving in the same direction. The lines of communication are open and transparent within the team which helps build trust.

The divorce coaches assist parties with the emotional aspects of divorce. The coaches facilitate effective communication during meetings. A neutral child specialist (mental health professional) serving as a child advocate or assisting with parenting issues is brought in to give a voice to the children of divorce and help the parents thoroughly understand the needs of their children through the divorce.

The financial specialist, acting as a neutral assists the parties with gathering all necessary financial information and assists with financial needs, tax implications, retirement plans, business valuations, health insurance issues, or financial education. The financial specialist assists with brainstorming ways of dividing assets, debts and income.

All meetings are organized with minutes and agendas to prevent "surprise" issues from coming to the table and to build up trust. The collateral professionals, such as mental health professionals and financial specialists are routinely brought into litigated divorce matters as experts for one or both sides, but when used in a court oriented setting, they become the necessary weapons of the attorney for the purpose of destroying the other side's view of facts or legal issues and this process is often coined, "The Battle of the Experts!"

In the collaborative process, the multidisciplinary team is just that – a team with the same goal, i.e., helping to further resolutions based on the clients' needs and values for the restructuring of their family during and after the divorce. The traditional process focuses almost entirely on the "snapshot" of time occurring during the divorce.

Another benefit to the Collaborative Process is self-determination. People actively participate in their own settlements and are therefore much more committed to adhering to the settlements and are more likely to seek a similar route to problem solving in the future. On the other hand, when a third party, such as a judge, referee or arbitrator makes a decision after a hearing on issues or when lawyers or late stage mediators settle divorces "on the courtroom steps," people often end up settling out of fear, without having the time to make decisions and therefore end up re-litigating their divorces far into the future. Every attorney has heard it said: "He or she just wants his or her day in court!" Unfortunately, litigants to a divorce soon find out that a day in court is not at all what they imagined or anticipated because judges simply do not have enough time to discover everything about each party and the particularities of their family and usually end up 'splitting the baby in half.' The old statement: "Judges are successful when both parties are dissatisfied with the result," is not really far from truth. In contrast, with the collaborative process, people roll up their sleeves and work hard toward problem solving, resulting in a sense of satisfaction, accomplishment and moving the restructured family in the right direction for his or her future. The Collaborative Process affords them the time to mull over scenarios for settlement and come to much deeper resolutions.

Advantages of Collaborative Divorce

  • The parties are in control. Attorneys are present to assist, but the spouses are responsible for negotiation and the ultimate settlement as the most important members of the team.
  • Meetings are organized with minutes and the parties and their attorneys setting an agenda for meetings, making for no "surprise" issues coming to the table.
  • Attorneys provide advocacy, model effective communication, provide creative problem-solving, assist with interest and value based negotiations and help with informed decision making.
  • Positive solutions are possible because the mistrust and acrimony of threat of litigation reduces anxiety and fear.
  • Finalization of the divorce can be accomplished in a shorter period of time.
  • The process is efficient and is less costly and time-consuming than litigation.
  • The settlement is not "cookie-cutter;" it is tailor made to the specific needs for restructuring the family.
  • Collaborative settlements are much more detailed and complete than possible under the litigation model.
  • The Collaborative Process assists couples for future problem-solving by reducing stress, identifying priorities for both parties, assisting with better communication, and learning how to find creative solutions when future issues arise. This creates a superior environment where the restructured families can thrive after the divorce.

Disadvantages of Collaborative Divorce

  • The process is not suitable in matters involving domestic violence, mental illness or disorders, substance abuse and those who are looking to punish a spouse and are unwilling to cooperate respectfully.

This firm is educated in collaborative practice and facilitative mediation and prides itself in offering clients these options to assist them through the difficulties of divorce and post-judgment of divorce issues. We believe in restructuring families, not destroying them. Parties may be divorcing their spouses but not their children. Former spouses will always be Mothers and Fathers far into the future. Specialists in children's emotional and mental health all agree that children need both parents.

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